Bolinger v. Hall , 13 Ohio Law. Abs. 353 ( 1932 )

RICHARDS, J.

This case involves a construction of Item 22 of the will of Mary A. Hedrick, deceased, which was executed on April 1, 1927. The testatrix died on January 27, 1.931. She left no husband nor children and her heirs, if no will had been executed, would have been the descendants of her three brothers and a sister, said brothers and sister having died before the execution of her will. Each of the brothers and the sister left one or more children surviving and some of the children were deceased, leaving children. Approximately $40,000.00 remains for distribution under the provisions of Item 22 of the will. That item reads as follows:

“Item twenty-second: All the rest and residue of my estate not herein disposed of I give and bequeath to the heirs of my three brothers and my sister, to-wit: Thomas Hall, John O. Hall, David Hall and Eliza Hall Yetter per stirpes, to them and their heirs.”

The construction of this item of the will is determined very largely by the use of the words “per stirpes.” The beneficiaries under the will are the heirs of the brothers and sister of the testatrix and they can only take as provided by the will and that is, per stirpes. The words “per stirpes” mean by the root or stock and require that the heirs of each brother and sister shall receive by representation the .share that the parent or grandparent would haye received, if living at the death of the testatrix.

There having been three brothers and one sister of the testatrix, the heirs of each are entitled to one-fourth of the share passing under Item 22 of the will. The words “per stirpes” are used in contradistinction to the words “per capita,” which latter words, if used, would have given each heir surviving at the death of the testatrix an equal share.

Decree construing will.

WILLIAMS and LLOYD, JJ, concur.